Education Rights of Immigrant Children with Disabilities in Public Schools

The Rise school at the University of Alabama maintains a 50:50 ratio of children with and without special needs, creating the optimum learning culture for all young children. Photo by Carol M. Highsmith. See The Rise School for more information.

A group of elementary school children, some with and some without disabilities, sit in a circle as their teacher speaks to them.

By DREDF (Disability Rights Education and Defense Fund)

Currently, there is a great deal of public discussion and debate around immigration. However, the legal right of an education to children residing in the U.S. is clear. In 1982, the U.S. Supreme Court determined in the Plyler v. Doe decision that an undocumented school-aged child is entitled to the same free public education made available to other residents of the same school district, regardless of their immigration status. The Court determined that equal access to education is too important to deny, delay or defer. Education includes, for eligible students, special education; other supplemental educational programs for poor, English-learners, foster children, and immigrant students; and free school meals. Congress has deemed all of these programs necessary components of public education.

All publicly funded schools in the U.S must meet “Child Find” requirements, which means that schools and districts must actively look for ways to identify and refer children with disabilities for evaluation and support under important education and civil rights laws. There are many reasons why a child immigrating to the U.S., whatever the circumstances, may need evaluation for special education eligibility or protection under Section 504.

For example, many children arriving in the U.S. have witnessed or experienced extreme violence and trauma, which can cause difficulties with development, learning, attention, self-regulation, and behavior. Others may have fled their home countries because of a lack of care or inclusion for children with disabilities, and are seeking care, treatment, and opportunities in the U.S.

Others may have experienced detention in facilities without adequate care or education access, and have been separated from their parents before being placed with family or in their new community. Research of detained immigrants by the American Academy of Pediatrics found that children and parents may suffer negative physical and emotional symptoms from detention, including anxiety, depression and posttraumatic stress disorder when they are separated and/or subjected to detention.

For students with disabilities or suspected disabilities, access to evaluation and if eligible, support and services under the IDEA (Individuals with Disabilities Education Act) and/or Section 504 of the Rehabilitation Act of 1973 are a key components of how “access” to education is defined and provided in the U.S. Immigration status does not change this fundamental right to an education for a child living in the U.S., no matter how they arrived. Yet the reality remains that the barriers these students and their caregivers occasionally face can be daunting.

Although the evidence is well-established and undeniable that early intervention and access to services is essential to a child’s long-term educational success, many children in detention have no access to education at all, including to the evaluation, eligibility and services required by law for all children residing here.

A recent report by Disability Rights California (DRC) found that appropriate and necessary special education services were not provided to detained children unless a child was sent to the most restrictive detention centers, despite the fact that many children in less restrictive settings are in detention for six months or more. The Child Find duty triggers important timelines far shorter than this, and children who are missed may be sent to family, into foster care or other settings without having been identified as a child with a disability with a plan for service and support in place. Such delays may have lifelong negative impacts, regardless of the outcome of any immigration proceedings.

Whether or not they are detained, immigrant children and families may also be harmed by cultural and language barriers, poverty, insecure housing/homelessness, parents who are afraid of accessing public benefits because it might jeopardize their immigration or asylum claims/status or inadequate access to healthcare that can result in educational difficulties.

Schools may create barriers when they fail to refer and evaluate a newly arrived and/or struggling student for special education or 504 eligibility or seek other academic and social/emotional supports such as counseling, tutoring, or a behavioral support because a child “needs time to adjust or learn English.” Sometimes delays happen because it is assumed that the caregiver may not be supporting the child at home, or a belief that the child may not be in the school for long enough to evaluate. An educator may believe that once students learn English they will catch up to their nonimmigrant peers, yet fail to see that language learning is delayed by an underlying disability. Until a disability is identified and support/remediation provided, the child may struggle to acquire English or to benefit from their education.

It is important for families to understand that there are many important protections that may apply to these situations. For example:

The Family Education Rights Privacy Act (FERPA) limits the information that schools can share with immigration enforcement unless a judicial warrant is issued. It also allows parents/caregivers to opt out of school directories and limit what information is shared with any outside agency with limited exceptions.

Schools are considered protected zones by Immigration Enforcement at this time. Students should not be approached or interviewed by Immigration at school at any time.

A child does NOT have to be residing with their parent in order to enroll in a school district where they live.

Many children are protected under the McKinney Vento Homeless Education Act, because of the insecurity of their housing situation. Others may be protected under rights afforded to children in foster care.

Families have a right to language interpreters in school meetings, and to ask that an IEP be translated for them so that they can understand what they are agreeing to. An IEP will follow the student to any other school, district or state/territory and a process exists to assure continuity of services. Caregivers with disabilities have the right to request reasonable accommodations in order to participate in school activities, including IEP and 504 meetings.

Regardless of the type of health insurance (or lack of it) a person or family may have, if a service or support is necessary for a student with an IEP to access or benefit from their education as determined by the IEP team, the public school cannot require that a family use their insurance, including Medicaid, to pay for these. If an IEP team determines that a support or service is required to provide a student with a FAPE (free appropriate public education), it must be provided regardless of funding source.

Although this is a complex area of law, it is important to understand that for children with disabilities, early intervention, special education and nondiscriminatory access to education are essential elements of our national policy, and apply to all children living here.

Families and students need to know what their rights are in order to use them. For this reason, we have included a number of related key resources this month.

We encourage families, caregivers, educators and community-based organizations to review/use these to learn more about this issue. Every state and territory in the U.S. also has at least one Parent Center that can provide information, training and support in navigating the education system when a child has a disability, and can put you in touch with local agencies and community based support in your area.